* I think that most “mainstream” conservatives (i.e. the Rush Limbaugh set, the Dittoheads) have this vague sense that the US Constitution is a magical document that, if followed to the letter, would produce only “good” outcomes, their notion of goodness being a rather unexamined one which will be discussed below. Therefore, any ruling by any court which they deem unconformable to their liking must be the result of liberal activist judges behaving unconstitutionally. In other words, since the Constitution is defined as doing no wrong, they simply beg the question on the constitutionality of unwanted rulings. This whole process came to a head most recently during the Obamacare fracas. When Chief Justice Roberts issued his opinion upholding the ACA, the mainstreamers were up in arms. They didn’t want or like the ACA, so obviously this was “unconstitutional,” right? The arguments adduced to condemn Roberts’ decision were a truly preposterous collection of calumnies ranging from the pop-psychological (“Life is high school, folks. You never get out of high school. Roberts just wanted to ingratiate himself with the cool kids in Washington.”) to the ominous (“What kind of dirt does the NSA have on Roberts that they could blackmail him like this?”) to the pathetic (“Roberts did not want to be the one to deny the First Black President his signature piece of legislation.”). Missing from all of this hysterical reaction was any willingness to entertain the idea that Roberts really did rule in accordance with the law; for all of the legal scholars whom I read at the time—who were no liberals, mind you—agreed that in the broad sense Obamacare was constitutional, even if it was a terrible idea. The Supreme Court did not find any grounds for striking down the law that were no so uselessly capacious as to invalidate pretty much everything the federal government actually does. The essence of the matter was very succinctly expressed in Roberts’ appropriation of Obama’s taunt: “Elections have consequences.”
Furthermore, the Dittoheads’ conception of what comprises a “good” constitutional outcome is indefensible and oftentimes just plain silly. The typical example to be cited regarding that point is the modern-day transvaluation of the controversy over slavery in the Southern States. The modern Dittos begin with the premise of strict constructionism: The US Constitution is the supreme law of the land and it must be obeyed as written (they are forever qualifying their panegyrics with innumerable ‘as-writtens,’ as if that clarified the matter). The modern Liberals respond to this premise with the objection that the Constitution must be a “living, breathing document”; for, after all, it codified slavery into law (“which we all agree is an unmitigated moral evil”) and we did away with that, didn’t we? To this the Dittos oppose an argument which is both historically inaccurate and tactically boneheaded. “Ah, but the wise and beneficent Framers, recognizing that the Union could never be preserved without making some provisions for the Southern States on this issue at the time, nevertheless placed into the Constitution the mechanism for getting rid of slavery at a later date.”
It should be pointed out that this argument, even by its own lights, enshrines the idea that an act of pragmatic state necessity (preserving the Union) takes precedence over any ideological commitments to universal human liberty, even in the case of an “unmitigated moral evil.” Thus, the premise of strict constructionism, along with any notion that the liberties guaranteed by the Constitution cannot be overridden by a supposedly higher purpose, is already hoist with its own petard. But of far greater weight is the swallowing whole of the description of slavery as inherently evil; which—since the Constitution can do no wrong—must on the Dittos’ view entail that the Framers were working behind the scenes from the beginning to eradicate this bane from the land.
That counterfactual claim is nothing but a cowardly concession to the spirit of our own times, and neither historical truth nor constitutional rigor has anything to do with it. What the conservatives should have done is oppose the entire spirit of modernity by speaking candidly on the subject of slavery by laying out the following:
1) That the condition of slavery is not an inherent moral evil and is not contrary to the natural law; contrarily, it actually benefits those who have proven themselves incapable of self-governance.
2) That during the long millennia prior to the modern age, every nation, every empire, every higher culture was completely dependent on slaves or servants for its very existence; and
3) That the only reasons we today delude ourselves that we are able to dispense with the eternal tension of master and slave is because our advanced machine industry has largely taken over menial labors in our native lands, while the menial work that still remains to be done is performed in foreign sweatshops by workers whom we never see. Thus, by immoderately proclaiming the blessings of liberty to one and all, and heaping condemnation upon our ancestors, we are engaging in an orgy of self-congratulatory moral preening to which we have no real title whatsoever.
The only conservatism worthy of the name is what you might call the anti-modernist, Traditionalist/Perennialist, reactionary kind—not the Constitutionalist kind. Constitutionalism is simply the leftovers of yesterday’s liberalism. The very notion of a separation of powers among the branches of government is contrary to the nature of power and ought, at least by now, to be regarded as a quaint production of an overstrained intellect which has never in fact been observed. It is one thing for men to voluntarily form a compact that provides for self-government and the mutual respect of one another’s property; it is quite another to suppose that the primordial forces of history can be countered by flourishing a text in their face. However, for as long as the Constitution remains the law of the land, it needs to be observed with at least a begrudging respect. Bill Kistol, by his own mouth, has confessed himself to be a traitor and an outlaw by preferring the rule of the Deep State to the rule of the constitutionally elected president, and has thereby forfeited any claim to the protections the Constitution might otherwise have afforded him. Let him be treated as such.
* The lawyers and doctors were having a convention and after a few two many drinks one lawyer while speaking to the group opined, “We wrote the Constitution, when you doctors were putting leaches on George Washington’s ass.” Its sort of true. A couple lawyers in the colonies created more human progress, wealth, satisfaction, goodness, than any other profession. Think of the wealth created in America (not because of magic dirt), the progress, the millions of people allowed to live their lives as they saw fit. People of the same genetic stock in UK and Europe do not match the United States in any way.
Surely a student of history 500 years in the future will study the Greece golden age, the Roman Republic and the USA as high points of individual freedom in a history of mankind sadly lacking in much of it.
* Glenn Greenwald, whose been making the interview rounds of late discussing the deep state in the context of the current events, mentioned Bill Kristol’s preference (and MSM, Neo Cons & democrats) for the destruction of this administration by that means as hypocrisy and absolutely dangerously undemocratic. He’s no Trump fan and would like to see by legal means Trumps policies thwarted, but he’s intellectually honest enough to see that these expedient partisan selective outrages are destroying our country.